Antonin Scalia Experienced a Liberating Explosion of Joy During the Obamacare Arguments

Real-time discussions with Slate writers.
March 29 2012 4:59 PM

Scalia’s Liberating Explosion of Joy

Dahlia Lithwick chats with readers about the Obamacare oral arguments.

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Olav Hellevik: Where do you think justices Kennedy and Roberts stand? I read somewhere that many predict that ACA will be upheld by a vote of 6-3.

Dahlia Lithwick: After Tuesday it appeared Kennedy and Roberts were both hostile to the bill but attempting to keep an open mind. Kennedy implied that he saw how the insurance market differed from other markets. Roberts asked questions of Clement, the challengers’ lawyers, but they were all framed as "the government says . . ." rather than as issues he was personally struggling with. I think most people believe that if Kennedy gets cold feet on striking down the mandate, Roberts will go with him to write the opinion as narrowly as possible, hence the 6-3. But—see Scott Lemieux, above—many people now suspect it goes down 5-4.

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Phyllis Foster: I do not understand why it could be unconstitutional to "force" people to pay for services which, by law, the health care industry is "forced" to provide. If someone collapses on the street or is struck by a car, emergency workers come and provide medical assistance and/or transport to a hospital, the hospital perhaps providing extremely expensive life-saving treatment. If the patient is uninsured and cannot pay, then other citizens pick up the tab one way or another, through their own increased insurance costs or government assistance, or else the providers are "forced" to absorb the costs. I wonder if any of the judges have considered this aspect.

Dahlia Lithwick: The justices did consider that. When the solicitor general told the court that people get health care whether or not they can pay for it because we have laws requiring it Scalia retorted "well, don’t obligate yourself to that."

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Jen Deaderick: People I knew advocated rioting after Bush v. Gore, but I felt at the time that rioting would only make things worse, that we needed to deal with the outcome in a rational and political manner. Now I kind of wish I'd at least smashed a few windows.

Dahlia Lithwick: Jen, nobody will riot after this case comes down. The question is whether the power of the folks who launched Occupy, punished Komen, and killed the Virginia ultrasound vote, can mobilize public opinion to recognize that the single most important thing a president does is appoint judges. The judicial appointments of George W. Bush were his greatest success by far. Connect those dots and maybe people will vote in November?

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James Haygood: I gotta’ say I love listening to SCOTUS—I love hearing extremely bright people parsing details of arcane information. And at the same time the past couple days were so, I don't know, human? Scalia bored, Sotomayor keeping it real, Thomas off in his own world, Kagan bringing the smackdown jokes, Roberts torn between his immediate desires and his legacy ... It was like the world’s most sure-to-be-cancelled TV sitcom ...

Dahlia Lithwick: Go back and listen to SCOTUS on the AIA on Monday because that was really great, boring, and interesting. By end of yesterday when Scalia was giggling about who he would choose between saving himself or his wife, the chief looked ready to kill him. So yes there was a discernible sense of giddiness overtaking the gravitas. Part of that was that we had just sat through over six hours and everyone was weary (and we had eight minutes for lunch). But part of it was that the court had untethered itself somehow and you're right it was very jarring when justices were complaining about reading a bill!

Lisa Tucker McElroy: Dahlia, your coverage was stunningly good and helpful and informative. As an interested reader, you're one of my very first stops.

Dahlia Lithwick: Thanks and you are one of mine!

Dahlia Lithwick: Friends I apologize I have a flight to catch!!! Thank you so very, very much for sharing this past hour and some part of the last three days with me. Thanks for reading Slate. Cheers!

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